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When discussing national copyright legislation with lawyers, most discussions end relatively quickly with reference to the inherent necessities of international treaties. Legalize non-commercial file-sharing? In conflict with the Berne three-step test, which is included in the TRIPs Agreement, the WIPO Copyright Treaty, the EU Copyright Directive and the WIPO Performances and Phonograms Treaty (see also the Declaration on the Three-Step Test by the Max Planck Institute for Intellectual Property in Munich). Introduce a so-called cultural flat-rate (see also “Extending Private Copying Levies“)? Not in line with the Three-Step Test, either. Shorten copyright terms below the 50 year threshold? Impossible, at least for WTO member states, which have to abide to the TRIPs Agreement.

And there is, of course, some truth in the prevailing view that most aspects of copyright legislation are already mapped out by international law, leaving national legislatures with only little room for maneuver. Nevertheless, two recent and very antagonistic examples of national copyright reform efforts show that this national leeway is not so small after all.

In sharp contrast to European tendencies to increase scope and length of copyright protection, the Brazilian copyright reform proposal put forward by the governing Worker’s Party includes wide exceptions for non-profit educational uses, a reduction of the copyright term from 70 to 50 years, and it even flirts with the introduction of a cultural flat-rate (see vgrass; an English version of the proposal: PDF). One of the most striking clauses in the bill deals with circumvention of copy protection measures (so-called “DRM“), as is reported by Michael Geist:

Not only does the proposal permit circumvention for fair dealing and public domain purposes, but it establishes equivalent penalties for hindering or preventing the users from exercising their fair dealing rights.  In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago – over-protection is just as harmful as under-protection. Read the rest of this entry »

The impact of copyright regulation on economic development in general and innovation in particular is not the primary topic discussed in this blog, even though it is the issue that feeds most of the current conflicts about copyright regulation. In last week’s issue, the German magazine “Der Spiegel” published a feature entitled “Explosion of Knowledge” (German article). The article is more or less a synopsis of the comprehensive, two-volume and over 860 pages strong “Geschichte und Wesen des Urheberrechts” (“History and Essence of Copyright”) by Eckhard Höffner, historian based in Munich. Why does a general interest magazine like “Der Spiegel” feature a book on copyright in 19th century Germany? Obviously, the reason are implications for ongoing debates on copyright legislation and its impact on economic development, or, as stated in the article’s subheadline:

Has Germany’s industrial rise in the 19th century happened because the country did not have copyright?

Following Höffner, Wolfgang Menzel’s famous dictum of Germany as a nation of “poets and thinkers” (“Dichter und Denker“) did not so much refer to prominent German writers such as Goethe or Schiller, but rather to Germany as a whole. Compared to England, where the Statute of Anne had introduced the first “modern” copyright in 1710, 19th century Germany produced more books, written by more authors, distributed to more readers. In 1843 over 14.000 different titles – a majority being non-fiction books – were printed in Germany compared to only about 1.000 titles printed in England. The main reason, according to Höffner, was weak copyright enforcement due to Germany’s small-statism. Read the rest of this entry »

In a speech given at the Italian parliament earlier this month titled “Internet is Freedom”, Lawrence Lessig prominently addressed issues recently discussed in this blog: as argued in “Reflections on Abolitionism: Copyright and Beyound“, he painted the picture of fighting extremists – abolitionists on the one, copyright zealots on the other hand -, thereby presenting himself as the sensible moderate seeking a middle course. So far, so business as usual.

What struck me was the particular compromise Lessig suggested: referencing the book “Promises to Keep” (2004) from his Harvard Berkman Center colleague William Fisher III and the German Green Party, he advocated for introducing a “Cultural Flat-rate” (see “Extending Private Copying Levies: Approaching a Culture Flat-rate?“).

While the short clip above delivers those 6 minutes of Lessig’s half an hour long speech that deal with abolitionism, copyright zealots and the Cultural flat-rate, I can only recommend watching the whole speech at blip.tv.

(leonhard)

More than seven years ago in 2002, Google launched its automated news aggregator “Google News”: Articles are selected and ranked by an algorithm according to characteristics such as issue frequency, freshness, location, relevance and diversity. On its front page Google News presents the headlines and about 200 characters of some articles together with links to the full texts where available online.

Not later than 2005 Google had to face the first law suits dealing with alleged copyright infringement filed by news agencies (e.g. Agence France Presse). Their claim: Google generates revenue using their content without proper compensation. But news agencies are not the only ones demanding their share from Google’s profits. Recently, the European Publisher Council (EPC) as well as the World Association of Newspapers and News Publishers (WAN-IFRA) and several of their member organizations signed the “Hamburg Declaration on Intellectual Property Rights” (see list of signatories) that bemoans too little protection and compensation of online content. In Germany, the Federation of German Newspaper Publishers (BDVZ) even calls for a new and all-embracing ancillary copyright with lump-sum payments as compensation for revenues third parties like Google make with their content.

Critics of these claims, however, accuse publishing houses of simply failing to develop new business models and therefore now trying to lobby for legally enforced compensation. One of these critics, blogger Malte Welding, compared the CEOs of publishing houses to zoo directors in a very entertaining piece (in Google-English) in the German online-only paper “netzzeitung”: Read the rest of this entry »

Three days ago, on May 5, the Economist started a week-long public debate under the headline “Copyright and wrongs: this house believes that existing copyright laws do more harm than good.” In his opening remarks, Kenneth Cukier gives the following rationale for hosting the debate:

Copyright strangles creativity. Copyright rewards originality. It is a nuisance to the public that unduly enriches a few people. It is the backbone of our knowledge economy that fuels progress. Hate it, love it, break it, protect it; few people lack strong opinions about copyright and its place in society.

As debaters, the Economist invited Harvard’s copyright critic William Fisher and Justin Hughes from Yeshiva University as an advocat of the prevalent copyright regime. While both present utilitarian arguments rooted in standard neoclassical economics for their oppositional claims – which, by the way, demonstrates how arbitrary mainstream economic reasoning can be -, the former also gives a short explanation for the, in his view, distorted development of copyright legislation in his first statement:

How did we get into this pickle? At least three intertwined causes seem to be at work. First, most recent adjustments in the copyright system have been spurred and shaped by interest groups that have stakes in expansion of copyright protection and that fail to take into account the interests of the public as a whole. Second, the multilateral intellectual-property treaties that now govern most countries establish floors, not ceilings. The result has been a ratchet: it is easy to increase the levels of legal protection, but hard to decrease them. Third, lawmakers are afflicted with the local maximum problem; they seek to alleviate problems by making modest improvements in the existing regime, unable to see across the valley to radically different approaches that would be much better. Read the rest of this entry »

One of the things that makes blogs particularly interesting are series. In this blog, for example, Phil features a series on “microcredit myths“. Today we are starting a series recommending series at related blogs. As an opener I present Digital Renaissance’s “Songs to the Music Business”.

The guys behind Digital Renaissance  -  two music label owners, a researcher and an expert on the movie business – describe the rationale for their blog as follows:

There need to be a Digital Renaissance. Renaissance is the french word for rebirth. It was a cultural movement that brought us out of the middle ages and into the future and then some with a vengeance 4.0 style. The world adjusted to this cultural movement. It is time for the world to start adjusting to the Digital Renaissance.

Yesterday, they started a series “with songs that can be translated as good stories of – or advice/mindsets to the music business”. The first entry of the series is devoted to Warren G and his piece “What’s love got to do with it?” (YouTube-Video) . There they are claiming that Warren G is “telling the whole truth” in the third verse, where he raps:

“Now for these labels tellin’ fables, makin’ the messed-up deals under the tables. You think that you smart, but, fool, I’m the smartest. You can’t make no money if you can’t keep an artist.” Read the rest of this entry »

In his recent article “Decoding Divergence in Software Regulation”* Thomas Eimer very convincingly demonstrates and explains differences in software patent regulation between the United States and the European Union. He basically distinguishes three “structural causes for the persisting divergence” (p. 276) – namely the US practice of patenting software versus the European reluctance of doing so:  (1) incompatible underlying paradigms, (2) differentiated patterns of power structure, and (3) unsynchronized institutional arrangements.

Especially in dealing with the first cause, “paradigmatic cleavage”, Eimer argues rather broadly, embracing both patent and copyright law. And I completely agree, when he contrasts the strong “utilitarian” rationale of intellectual property rights in the US with European scepticism for such utilitarian reasoning. I am not so sure, however, that the partial rejection of utilitarian welfare assumptions automatically leads to a better balance between “public and private interests” in the field of intellectual property regulation in general, as implied by Eimer when he writes: “Opponents of strong intellectual property rights in Europe can refer to a long tradition of suspicion”. Read the rest of this entry »

In the realm of transnational copyright regulation several struggles are fought in parallel: Stylized and simplified, these are Free/Open Source Software movement vs. the proprietary software industry, the free culture movement around Creative Commons vs. the established music and film industry, and, of course, there is the industry-spanning battle against “pirates”, sometimes even literally and in court (see Wikipedia on “The Pirate Bay trial”). For a long time the publishing industry in general and the field of scientific publishing in particular  seemed to be the only copyright field without open and severe conflict. While the former prevents both piracy and growth of the e-book market with strict digital rights management (see “The Kindle Controversy: No Right to be a Reader?”), in the latter Open Access initiatives for free and open availability of scientific publications – for example by the European Research Council (PDF-statement) or by the “Alliance of German Science Organisations” (English Version of its founding document), which includes the Max Planck Society and the German Research Foundation (DFG) – did not raise substantial public opposition.

At least for Germany, this description is yesterday’s news. A series of articles in German newspapers during the last weeks criticizing “expropriation” of authors by a sinister coalition of “Open Access” zealots and Google culminated in a petition called “Heidelberger Appell” (English Version). This petition was not only signed by numerous renowned researchers, publishers and authors but also inspired an immediate thunderstorm of reactions including a joint statement by the “Alliance of German Science Organisations” (for an extensive list of reactions in German see infobib.de; a concise overview of the genesis of the whole uproar is provided by Matthias Spielkamp at perlentaucher, quite readable in Google Englisch – now available in English at signandsight.com).

Without reproducing these extensive discussions here, I would like to mention just three reasons why I think the “Heidelberger Appell” misses the point: Read the rest of this entry »

Last December I was invited to participate in Standord Law School’s Center for Internet and Society (CIS) speaker series with a talk on "The Copyright Dispute: A Transnational Regulatory Struggle". In a nutshell, most of what it was about can be grasped by looking at the stylized figure below:

Stylized illustration of regulation in the field of copyright

Living up to its name, the CIS offers es a podcast feed of its speaker series via iTunes (Feed), where an audio version of my presentation and the following discussion (including comments from Larwence Lessig) is available. This great service leaves me with offering the slides (PDF) and an iTunes-free mp3-download (9,64 MB) of the talk.

(leonhard)

“Epistemic Communities and Social Movements: Transnational Dynamics in the Case of Creative Commons” is the title of a new MPIFG Discussion Paper that Leonhard and I released last summer (PDF). The abstract reads as follows: Read the rest of this entry »

The Book

Governance across borders: transnational fields and transversal themes. Leonhard Dobusch, Philip Mader and Sigrid Quack (eds.), 2013, epubli publishers.
November 2014
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